Where the claimant has entered into a bad bargain, it will be to his advantage to claim on a quantum meruit if the defendant is in breach. In Boomer v Muir, the plaintiff terminated a contract to build a dam, following a serious breach of contract on the part of the defendant which justified that act of termination. The court awarded the plaintiff $258,000, representing the value of his work in part-building it, despite the fact that this amount represented more than the amount he would have received under the contract itself. There is no direct English authority which has decided whether a claimant can recover more on a quantum meruit than he could had he brought an action in contract. Possibly, the answer to this lies in the fact that if the remedy provided is purely restitutionary, the fact that the defendant has abandoned the contract and that the claimant has accepted that abandonment, what would have happened if the contract had been performed becomes entirely irrelevant. But a counter-argument here is that restitutionary

doi:10.4324/9781843141518-291

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Where the claimant has entered into a bad bargain, it will be to his advantage to claim on a quantum meruit if the defendant is in breach. In Boomer v Muir, the plaintiff terminated a contract to build a dam, following a serious breach of contract on the part of the defendant which justified that act of termination. The court awarded the plaintiff $258,000, representing the value of his work in part-building it, despite the fact that this amount represented more than the amount he would have received under the contract itself. There is no direct English authority which has decided whether a claimant can recover more on a quantum meruit than he could had he brought an action in contract. Possibly, the answer to this lies in the fact that if the remedy provided is purely restitutionary, the fact that the defendant has abandoned the contract and that the claimant has accepted that abandonment, what would have happened if the contract had been performed becomes entirely irrelevant. But a counter-argument here is that restitutionary

ABSTRACT

Where the claimant has entered into a bad bargain, it will be to his advantage to claim on a quantum meruit if the defendant is in breach. In Boomer v Muir,41 the plaintiff terminated a contract to build a dam, following a serious breach of contract on the part of the defendant which justified that act of termination. The court awarded the plaintiff $258,000, representing the value of his work in part-building it, despite the fact that this amount represented more than the amount he would have received under the contract itself. There is no direct English authority which has decided whether a claimant can recover more on a quantum meruit than he could had he brought an action in contract. Possibly, the answer to this lies in the fact that if the remedy provided is purely restitutionary, the fact that the defendant has abandoned the contract and that the claimant has accepted that abandonment, what would have happened if the contract had been performed becomes entirely irrelevant.42 But a counter-argument here is that restitutionary remedies serve to subvert contracts which have been freely entered into.43 Conversely, it should be observed that by the time the remedy is granted, there are no continuing primary contractual obligations to be performed by the parties.